Sabyasachi Mukharji, J. - (1.) This is an appeal under Section 130E (b) of the Customs Act, 1962 (hereinafter called 'the Act') which arises from the judgment and order dated 13th March, 1984 passed by the Customs Excise and Gold (Control) Appellate Tribunall (hereinafter called 'the Tribunal'). The appellant imported Colour Scanner Chromograph C-299 by air on 20-4-1980. The same is allowed to be imported under Appendix 2 of the Import Policy for the year 1981-82 (under the caption "printing machinery" at 12 (3) of Appendix 2 of the Import Trade Control policy for the year 1981-82). The appellant filled the Bill of Entry for clearance under Tariff Item 84.35. The Assistant Collector divided the imported chromograph C-299 under 4 sub-heads in the Bill of Entry and assessed the same under Tariff heading 90.25 (i) and levied customs duty thereon at the rate of 40% plus 5% auxiliary duty plus 8% c.v.d. The appellant cleared the cargo after payment of duty as assessed on 13-5-1980. The Assistant Collector of Customs, thereafter, on 26th July, 1980 sent a Less Charge Demand for a sum of Rs. 7,60,032.72 on the ground that Colour Scanner is assessable under the heading 90.10 at the rate of 100% plus 20% plus c.v.d at the rate, of 8% as against the original assessment under the heading 90.25 (i) and issued the said notice under Section 28 of the Customs Act to show cause why the amount should not be recovered. In reply forwarded by the appellant on 28-8-1980, it was stated that the imported scanner is used only in printing industry and definitely not used in photography or cinematography laboratories. It never produces copies of any document either by photography or by thermocopying process. The appellant's contention was that this colour scanner being intended to analyse the colour of a composite transparency or colour bromide and finally produce four different positives and negatives on graphic art films and that the colour scanner also analyses any transparency into four basic colours, viz., yellow, magenta, black and blue. The appellant further contended that the colour scanner imported was capable of being used as ancillary equipment in the printing industry only. The assessing authorities, however, as mentioned hereinbefore, did not accept this contention and had inserted heading 90.25 (i) of the Customs Tariff Act. The appellant-dealer was contending that the said goods would only be classified either under Entry 84.35. The Tribunal held that the said goods could not be classified under Entry 84.35. The Tribunal found that the classification of the goods by the appellant under Entry 84.35 could not be sustained if the catalogue submitted was analysed which provides as follows:"We present the new Chromograph 299 for all scanner and process camera operators, and hope to help in snaping the future of your process operations. Let us state at the outset that the Chromograph 299 does not replace the expert operator. But with this modern high-performance "tool" he can more effectively and more economically apply his know-how to production".
(2.) The Tribunal also found in another portion of the catalogue that: "The Chromograph 299 produces colour separations rapidly and reliably without accessory equipment and without intermediate negatives or colour duplicates. This means reduced material costs and at the same time increased productivity".
(3.) Entry 84.35 refers only to "other printing machinery". The Tribunal was right in holding that the particulars gathered from the catalogue did not indicate that the machinery in question could be called as one ancillary to printing. It was urged by the appellant before the Tribunal that in trade and industry and in scientific and technological parlance that equipment is used in printing industry only. There is, however, no evidence or clear proof to that effect. As mentioned hereinbefore, the function of the scanner was only to prepare colour separation sets which might be useful for printing. The Tribunal also considered Entry 19.07 and held that it did not apply in the instant case because it was not a camera; much less a photographic camera. The Tribunal also referred to the contention about Entry 19.25 and on analysis came to the conclusion that the said goods could not be considered such goods as to attract duty under Entry 19.25. The Tribunal on an analysis was of the opinion that the only possibility left was that of Entry 19.10 under which the goods would attract duty. The Tribunal was of the opinion that if the scanner was an apparatus or equipment used in photographic and cinematographic laboratories then this heading would be appropriate. The Tribunal on an analysis of the evidence found that the scanner produces colour separation rapidly without intermediate negative or colour duplicates. In that view of the matter the Tribunal was of the opinion that the machinery would come under Entry 19.10. In this connection, the Tribunal also referred to Notification No. 36/81. There, it has been stated that exemption has been granted for import of such machines when used in printing industry. The exemption was also sought on behalf of the appellant under Notification No. 112/77. However, the Tribunal pointed out that that notification would be applicable only to machines attracting duty under Entry 84.35. Further, this notification contemplated "process cameras within its ambit". It was conceded on behalf of the appellant that the colour scanner imported was not a process camera. In the premises, the Tribunal was of the opinion that it was assessable under Entry 19.10.;